AI Structured Summary
Not yet generated for this judgment
Judgment
B.V. Nagarathna, J.—1. Though this appeal is listed for admission, with the consent of learned counsel for parties, the appeal is taken up for final hearing.
The defendants in O.S. No. 21/2005 have preferred this second appeal, assailing the order passed in R.A. No. 87/2013, dated 25/10/2014, by the Prl. Senior Civil Judge at Athani, on an application filed by them under Section 5 of the Limitation Act, 1963, for condonation of delay of about seven months in filing the appeal, has been dismissed.
For the sake of convenience, the parties shall be referred to, in terms of their status before the trial court.
It is the case of the appellant/defendants in O.S. No. 21/2005 that the respondent/plaintiffs had filed the said suit seeking reliefs of declaration and perpetual injunction. During the pendency of the suit, the advocate of the appellants died on 18/04/2011. As a result, the defendants did not cross-examine the respondent/plaintiffs and neither was any evidence let-in on behalf of the defendants. However, the trial court by judgment and decree dated 01/04/2013, decreed the suit and declared that the defendants have no right, title and interest over the ''AB'' suit road and that the defendants are restrained by way of perpetual injunction from constructing any building by encroaching the suit road. Being aggrieved by that judgment and decree, the defendants preferred R.A. No. 87/2013, before the Prl. Senior Civil Judge, Athani. There was a delay of about seven months in filing the appeal. An application for condonation of delay was filed on behalf of the defendants. That application was considered by the first appellate court as the parties let-in evidence and thereafter the application was dismissed. Consequently, the appeal was also dismissed. Being aggrieved by the order passed by the first appellate court in R.A. No. 87/2013, dated 25/10/2014, the defendants have preferred this second appeal.
I have heard learned counsel for appellants and learned counsel for respondents as well as perused the material on record and also the original records.
During the course of submission, appellants'' counsel drew my attention to the fact that their advocate died on 18/4/2011 when the suit was pending before the trial court. In fact, the trial court on noticing this, had directed issuance of court notices to the appellants herein on 21/3/2012. But the records do not disclose that the court notices were served on them. As a result, the appellants were not represented in the suit. Neither cross-examination of the plaintiffs was conducted nor did they let-in any independent evidence. They had filed written statement in the suit denying the case of the plaintiffs but the suit was decreed without participation of defendants before the trial court. No doubt, there was a delay in filing the appeal, but the first appellate court has come to the conclusion that sufficient cause was not shown to condone the delay and there has been miscarriage of justice caused to the appellants. Therefore, substantial questions of law would arise in this appeal, which would call for admission of the matter for a detailed hearing.
Per contra, learned counsel for respondents, supporting the judgments and decrees of the courts below contended that that the appellants'' advocate died on 08/04/2011. But the judgment of the trial court is dated 01/04/2013. The appellants herein had the knowledge of the death of their advocate. They had sufficient time to engage another counsel and to defend their case before the trial court. The appellants herein have not been diligent in prosecuting the case. Though they were knowing about the pendency of the matter before the trial court and subsequently disposal of the suit, they did not choose to file an appeal in time. They filed the appeal after a long delay of seven months. The evidence on record categorically proves that the appellants were aware of the passing of the judgment and decree by the trial court. But they acquiesced in the matter for a sufficient length of time and thereafter decided to file the appeal, which is belated. No cause has been shown to condone the delay in filing the appeal. Therefore, the first appellate court was justified in dismissing the application filed by the appellants herein and consequently, the appeal had also been dismissed. That no substantial question of law arises in this appeal and hence, the appeal may be dismissed in limine, is the submission.
Having heard learned counsel for the parties and on perusing the material on record as well as original records, in my view the appeal requires admission on the following substantial questions of law:
Whether the first appellate court was justified in rejecting the application for condonation of delay filed by the appellants herein?
Whether the appellants herein became disabled in defending the suit before the trial court on account of the death of their advocate on 18/4/2011, which has resulted in virtually an ex parte decree being passed by the trial court?
The appeal is admitted to consider the aforesaid substantial questions or law. As they are inter-linked, they are considered and answered together.
As already noted, the suit was filed by the defendants in the year 2005, seeking the relief of declaration and perpetual injunction. The evidence in the suit was closed in the year 2012. Prior to that the appellants, defendants in the suit had, filed their written statement and issues had also been framed. When the evidence was let-in by the respondents, the advocate for the defendants had died by then and the fact is that no alternative arrangement was made by the defendants for engaging another advocate. Of course, evidence was let-in on behalf of the defendants. Noticing this, the trial court issued court notices on defendants on 23/1/2012. In fact, first appellate court had noted this fact from the records and it is also noted by me that there is no indication in the order sheet that court notices issued by the trial court were in fact served on the defendants. But the trial court proceeded with the suit and ultimately decreed the suit on 01/04/2013, by holding that the defendants have not let-in either oral or documentary evidence on their behalf. Being aggrieved by that judgment and decree of the trial court, the defendants preferred R.A. No. 87/2013 on 16/12/2013. There was about seven months delay in preferring the appeal. An application was also filed by the appellants for condonation of delay by contending that their advocate died on 18/04/2011 and the case had proceeded before the trial court without the defendants being represented by their counsel and under the circumstances, the judgment and decree of the trial court was virtually an ex parte one and it is only when they came to know about the judgment and decree passed by the trial court, steps were taken to file the appeal particularly after the execution petition in E.P. No. 165/2013 was filed before the court in order to enforce the judgment and decree of the trial court. Evidence was let-in on the application filed by the appellants seeking condonation of delay in filing the appeal.
In the first appeal, as noted, there is no indication from the records that the appellants who were defendants before the trial court were served with court notices as there was no counsel who had represented them and neither were they appearing in the matter in person on being aware of the fact that the counsel had died. The first appellate court, however, went into the question whether the court was bound to issue any notice to the appellants/defendants as they were aware of the fact of the death of their counsel two to three days after his demise. Such a question raised by the first appellate court was not at all necessary when the trial court had decided to issue notices on the defendants on account of they not being represented in the suit. In answer to that question, the first appellate court has held that it was not necessary to issue any court notice to the defendants by the trial court as they were aware of the death of their advocate. Such an approach by the first appellate court is contrary to the principles of natural justice. When once the trial court had decided to issue notices to the defendants so that they could appear either as part-in-person or through an advocate for the purpose of defending the suit as the suit was at the stage of evidence, the first appellate court could not have taken a view that it was unnecessary to issue any notice to the defendants, irrespective of whether the defendants were aware of the fact that their advocate had died or not and irrespective of the fact that having become aware of the fact of the death of their advocate, they had not taken any step to defend the matter. The fact remains that neither the plaintiffs were cross-examined on behalf of the defendants nor was any evidence let-in by the defendants. The suit was virtually proceeded ex parte and was decreed. As a result, the defendants have not participated in the proceedings before the trial court when they filed an appeal assailing the judgment and decree of the trial court. The appeal has been dismissed on the aforesaid approach narrated in detail by dismissing the application for condonation of delay. It is to be noted that when a party has engaged an advocate and the advocate dies, it is for the litigant to make alternative arrangement to represent their case, otherwise it is only the litigant would suffer. In the instant case, appellants herein were disabled in defending the suit before the trial court on account of the death of their advocate on 18/4/2011, which resulted in virtually an ex parte decree being passed by the trial. Consequently, the first appellate court was not justified in rejecting the application for condonation of delay filed by the appellants herein as the delay in filing the appeal arose on account of the appellants herein not participating in the trial proceedings and they not being aware that the trial court had passed judgment and decree in the suit. In the circumstances, I am of the considered view that the substantial questions of law in this appeal have to be answered in favour of the appellants/defendants.
The appeal is allowed by setting aside the judgment and decree passed by the first appellate court dated 25/10/2014, in R.A. No. 87/2013, and also the judgment and decree of the trial court dated 1/4/2013 passed in O.S. No. 21/2005 as the said judgment and decree of the trial court has been passed without the participation of the defendants in the trial court. The matter is now remanded to the Addl. Civil Judge & JMFC, Athani, to consider the suit from the stage of cross-examination of PW 1 and to dispose of the suit in accordance with law. As all the parties except respondent Nos. 1 and 4 are represented by their respective counsel and respondent Nos. 1 and 4 are served before this court, they are directed to appear before the Addl. Civil Judge and JMFC, Athani, on 15/2/2016 without expecting any separate notice from that court.
Learned counsel for the appellants submits that he would take the responsibility of informing respondent Nos. 1 and 4 about the decision in this appeal so that they could appear on that date before the trial court. If respondent Nos. 1 and 4 do not appear on that day before the trial court, then the trial court to issue notices to them and on service of notice to them to proceed with the suit from the stage of cross-examination of PW 1 and dispose of the suit in an expeditious manner within a period of six months from 15/2/2016.
Appeal is disposed in the aforesaid terms. Parties to bear their respective costs.
In view of the disposal of the appeal, I.A. No. 1/14 does not survive for consideration and the same is ordered to be filed.
Office to return the LCR forthwith to the trial court.